Brewer v. School Board of the City of Norfolk, Virginia Brief of Appellees

    BRIEF OF APPELLEES

United States Court of Appeals
FOR THE FOURTH CIRCUIT

No. 11,782

C A R L O T T A  M O ZE L L E  B R E W E R , et al.,
Appellants,

v.

T H E  SC H O O L  B O A R D  OF T H E  C IT Y  OF  
N O R FO LK , V IR G IN IA , et al.,

Appellees,

Appeal from the United States District Court for the 
Eastern District of Virginia, Norfolk Division

Leonard H. Davis 
City Attorney 
908 City Hall 
Norfolk, Virginia 23501 

Counsel for Appellees

JA M E S M. N A S  HIT, HI



Page

Statement O f T he Case ........................... ................................... 1

T he Points I nvolved...... ............... ............... ....................................  9

1. Should the School Board be required to set percentage goals
and a numerical timetable for the. desegregation of faculties ? 9

2. Was there racial discrimination in the selection of a faculty
for the new Lake Taylor Senior High School? ...... .......... 9

3. The Northside-Rosemont Jr. High School situation. .......... 9

4. Was attendance area Sr. H. IV, which is served by Booker
T. Washington High School, established properly? ... ...... 9

5. The site of the proposed new Booker T. Washington
High School................................................................. ........ ....... 9

Statement O f T he Fa c t s ................................. ............ ................... 9

Plan Of The School Board Of The City Of Norfolk For 
Desegregation Of The Public Schools Of The City, As 
Amennded And Modified, Dated May 23, 1967 _______ _____  9

The Purpose Of The School B oard ............................. ................. 12

The Faculties ............................. ................. ................ ................... . 13

The Northside-Rosemont Jr. High School Situation................ 15

The Senior High Schools And The Geographical Attendance 
Areas Which They Serve .......................................... ............. ..... 16

The Site Of The Proposed New Booker T. Washington High 
School .......................................................................................  18

A rgument ..............................     19

1. The School Board, With Good Faith Implementation Of
Governing Constitutional Principles, Is Establishing A 
Unitary System ......................     19

2. The United States Did Not File Objections To T he Plan 22

TABLE OF CONTENTS



Page

3. The Plaintiffs Do Not Object To Many Parts Of T he
P lan  ......................................................................      23

4. The School Board Should Not Be Required To Set Per­
centage Goals And A  Numerical Timetable For The De- :

1 segregation Of Faculties .................................      23

5. There Was No Racial Discrimination In The Selection Of
A  Faculty For The New Lake Taylor Senior High School 26

6. The Northside-Rosemont Jr. High School Situation .......  26

7. Attendance Area Sr. H. IV, Which Is Served By Booker
T. Washington High School, Was Established Properly .... 28

8. The Site Of The Proposed New Booker T. Washington
High School ...............................................    31

9. The Site Of Lake Taylor Sr. High S chool..... ....................  31

Conclusion .....................................................................................................  32

TABLE OF CASES

Beckett v. School Board of Norfolk, Virginia, D.C.E.D.Va., 
1957, 148 F. Supp. 430, aff’d sub nom. School Board of the 
City of Newport News, Virginia v. Atkins, 4 Cir., 1957, 246 
F.2d 325, cert. den. sub nom. School Board of the City of 
Newport News, Virginia v. Atkins, 1957, 355 U. S. 855, 2 
L ed 2d 6 3 ........................................................ .......... .......................  2

Beckett v. School Board of the City of Norfolk, Virginia, D.C.E.D. 
Va., 1958, 3 Race Rel. L. Rep. 942-964 (apparently other­
wise unreported) ............................. .............. .................. .............3, 27

Beckett v. School Board of the City of Norfolk, Virginia, D.C.E.D. 
Va., 1959, 181 F. Supp. 870 ...................................................2, 3, 27

Beckett v. School Board of the City of Norfolk, Virginia, D.C.E.D.
. Va., 1959, 185 F. Supp. 459 ..... ............................... ....................... 3

Beckett v. School Board of the City of Norfolk, Virginia, D.C.E.D. 
Va., 1960, apparently unreported 3



Beckett v. School Board of the City of Norfolk, Virginia, D.C.E.D. 
Va., 1961, apparently unreported ..................................................

Beckett v. School Board of the City of Norfolk, Virginia, D.C.E.D. 
Va., 1964, 9 Race Rel. L. Rep. 1315 (apparently otherwise 
unreported) ............... ......................... ......................................... ..4,

Bell v. School City of Gary, Indiana, 7 Cir., 1963, 324 F. 2d 209, 
cert. den. 377 U. S. 924, 12 L  ed 2d 216 ...................................... .

Bowman v. County School Board of Charles City County, Virginia, 
4 Cir., 1967, No. 10,793,.... . F .2 d .............. ............... ..............

Bradley v. School Board of the City of Richmond, Virginia, 382 
U. S. 103, 15 L ed 2d 187 ..............................................................

Brewer v. School Board of the City of Norfolk, Virginia, 4 Cir., 
1965, 349 F.2d 4 1 4 ................................. ........................................

Brown v. Board of Education, 349 U. S. 294, 99 L  ed 1083 ..........

Deal v. Cincinnati Board of Education, 6 Cir., 1966, 369 F.2d 
55, cert, den........  U.S. ........ .....  L  ed 2d .......................... ....30,

Gilliam v. School Board of the City of Hopewell, Virginia, 4 Cir.,
1965, 345 F.2d 325, remanded on other grounds 382 U. S. 103,
15 L ed 2d 187 ................................................................................

Gilliam v. School Board of the City of Hopewell, Virginia, 382 
U. S. 103, 15 L ed 2d 187 ............................................ .................

Hill v. School Board of the City of Norfolk, Virginia, 4 Cir., 1960, 
282 F.2d 473 ...... ............. ............................................ ...........3, 19,

Kier v. County School Board of Augusta County, Virginia, 
D.C.W.D.Va., 1966, 249 F. Supp. 239 ................................. .

School Board of the City of Norfolk v. Beckett, 4 Cir., 1958, 
260 F.2d 18 ....................... ...............................................................

United States v. Jefferson County Board of Education, 5 Cir.,
1966, 372 F.2d 836, upon rehearing en banc, 380 F. 2d 385
(1967), cert, den........  U. S........., ...... L ed 2d (1967) ....

3

20

30

24

21

4

19

31

30

21

25

26

3

24



United States Court of Appeals
FOR THE FOURTH CIRCUIT

No. 11,782

C A R LO TTA  M OZELLE BREW ER, e t a l .,
Appellants,

v .

T H E  SCHOOL BOARD OF T H E  CITY OF 
NORFOLK, VIRG IN IA , et a l .,

Appellees.

Appeal from the United States District Court for the 
Eastern District of Virginia, Norfolk Division

BRIEF OF APPELLEES

STATEMENT OF THE CASE

This appeal1 presents the latest phase of the Norfolk 
school case o f Leola Pearl Beckett, et al., v. The School 
Board of the City of Norfolk, Virginia, et al. This phase 
began on September 30, 1965 but prior thereto Beckett, 
which was filed in 1956, was the subject of many hear­
ings in the District Court and three appeals to this Court. 
A  summary of these proceedings is sufficient to show how 
the current situation developed.

1 The appellants will be called “ plaintiffs”  and the appellees will be 
called “ School Board.”



2

The District Court, by decree filed on February 26, 1957, 
enjoined the School Board “ from refusing, solely on ac­
count o f race or color, to admit to, or enroll or educate in, 
any school under their operation, control, direction or su­
pervision, directly or indirectly, any child otherwise quali­
fied for admission to, and enrollment and education in, such 
school” . Beckett v. School Board of Norfolk, Virginia, 
D.C.E.D.Va., 1957, 148 F. Supp. 430. This Court affirmed, 
sub nom. School Board of the City of Newport News, 
Virginia v. Atkins, 4 Cir., 1957, 246 F,2d 325, and cer­
tiorari was denied, sub nom. School Board of the City of 
Newport News, Virginia v. Atkins, 1957, 355 U. S. 855, 
2 L ed 2d 63. As a result o f the appellate proceedings and 
a stay of the effective date of the decree, the injunction 
did not become effective until October 21, 1957, more than 
a month after the 1957-58 school year had begun.

During the five school years 1958-59 through 1962-63 
the efforts of the plaintiffs and the School Board were di­
rected toward the assignment to schools of individual chil­
dren who applied for transfers to or initial enrollments in 
schools attended wholly or predominantly by children of the 
opposite race.

In July, 1958 the School Board adopted standards, cri­
teria and procedures for the assignment of such children. 
The District Court adjudged them constitutional on their 
face, Beckett v. School Board of the City of Norfolk, 
Virginia, D.C.E.D.Va., 1959, 181 F. Supp. 870, and its 
decision was not appealed.

As the School Board acquired experience in the use of 
the standards, criteria and procedures it found that certain 
required interviews between school personnel and applicant 
children and their parents and guardians were not serving 
any useful purpose and eliminated them, The School Board



3

also found that it could relax its application of the aca­
demic preparedness criteria and still maintain the effi­
ciency o f its schools. This relaxation continued and was 
expanded from year to year until all applicants, who 
qualified otherwise, were admitted to the schools and grades 
for which they applied even if it was necessary to admit 
them on probation insofar as their grade levels were con­
cerned.

In a few instances the District Court found that the 
School Board inadvertently, without any intent to do so, 
had misapplied the standards, criteria and procedures, but 
in each of five separate proceedings spanning the years 
1958 through 1962 the District Court approved the actions 
taken by the School Board with respect to the overwhelm­
ing majority of the applications for transfers and initial 
enrollments. Beckett v. School Board of the City of Nor­
folk, Virginia, D.C.E.D.Va., 1958, 3 Race Rel. L. Rep. 
942-964 (apparently otherwise unreported; Beckett v. 
School Board of the City of Norfolk, Virginia, D.C.E.D. 
Va., 1959, 181 F. Supp. 870; Beckett v. School Board of 
the City of Norfolk, Virginia, D.C.E.D.Va., 1959, 185 F. 
Supp. 459; Beckett v. School Board of the City of Norfolk, 
Virginia, D.C.E.D.Va., 1960, apparently unreported; Bec­
kett v. School Board of the City of Norfolk, Virginia, 
D.C.E.D.Va., 1961, apparently unreported. In the two 
appeals from such approvals this Court affirmed the Dis­
trict Court. School Board of the City of Norfolk v. Beck­
ett, 4 Cir., 1958, 260 F.2d 18; Hill v. School Board of the 
City of Norfolk, Virginia, 4 Cir., 1960, 282 F.2d 473.

By the beginning of the 1963-64 school year the efforts 
o f the plaintiffs and the School Board had progressed from 
the consideration of applications of individual children to 
broader aspects. The plaintiffs sought, for the first time,



4

the integration of principals, teachers and other profes­
sional and administrative personnel. The School Board was 
developing a plan which it put into effect for the 1964-65 
school year, and the principles o f which it applied in its 
consideration of applications for transfers and initial en­
rollments for the 1963-64 school year. Basically, this plan 
provided that if only one school served an area all children 
living in the area would attend such school, and if two or 
more schools served an area all children living in the area 
would choose the school which they would attend. Under 
this plan dual attendance areas, applications for transfers 
and initial enrollments, and special tests to determine aca­
demic achievement and mental ability were eliminated, but 
there was no provision for the integration of faculties or 
administrative personnel. The District Court approved this 
plan and its application. Beckett v. School Board of the 
City of Norfolk, Virginia, D.C.E.D.Va., 1964, 9 Race 
Rel. L. Rep. 1315 (apparently otherwise unreported). On 
appeal this Court did not pass upon the merits but, because 
of appellate decisions so recent that they were not available 
to the District Court when the case was tried or to counsel 
when they prepared and filed their briefs, vacated the order 
of the District Court and remanded the case to it for 
further consideration. Brewer v. School Board of the City 
of Norfolk, Virginia, 4 Cir., 1965, 349 F.2d 414.

W e come now to the record2 on appeal.
Following the remand, pursuant to the order of the 

District Court filed on September 30, 1965 (Plaintiffs’ 
App. 1) the School Board filed its modified plan for the 
assignment of children and filed certain information re­

2 References to parts of the record which have been printed will be
made by “ (Plaintiffs’ App........) ”  or “ (School Board’s App.........) . ”
References to parts of the record which it was thought unnecessary 
to print will be made by “ (R . V ol..... p...... ) . ”



5

quired by the District Court (R. Vol. I p. 5), and the 
plaintiffs filed their exceptions (R. Vol. I p. 41). A  hearing 
on the exceptions was set for February 26, 1966 (R. Vol. 
I p. 45). On February 26, 1966 the School Board tendered 
a revision of its modified plan which corrected certain 
technical errors but did not change the substance (R. Vol. 
Ip . 81).

On February 23, 1966 the United States of America, 
without objection from the plaintiffs or the School Board, 
intervened in Beckett as a plaintiff (School Board’s App. 
!)■

The hearing which had been set for February 26, 1966 
was continued to March 22, 1966 (R. Vol. I p. 89), and 
the plaintiffs, United States o f America and the School 
Board, pursuant to the suggestion o f the District Court, 
entered into extended conferences out of which came the 
Plan O f The School Board O f The City O f Norfolk For 
Desegregation O f The Public Schools O f The City, dated 
March 17, 1966 (Plaintiffs’ App. 9-18)3 which was agree­
able to all. The District Court, by order filed on March 17, 
1966, approved the Plan but in doing so said:

“ In approving the plan this day submitted, the Court 
expressly states that it has taken this action only be­
cause it is at the request of the School Board of the City 
of Norfolk and pursuant to agreement of all interested 
parties, including the Civil Rights Division of the 
Department of Justice. This Court has always been of 
the opinion that matters touching the administration 
o f any public school system should be primarily re­
served to the School Board and its administrators. The 
plan, as submitted, is in fact a racial plan and, in the 
absence of agreement, would not be approved by the 
Court. The entry of this order shall not be considered

3 The Map—Elementary Schools was not printed.



6

as any judicial precedent with respect to pending or 
future controversies relating to school desegregation 
plans.” (Plaintiffs’ App. 7-8.)

The hearing set for March 22, 1966 was cancelled and 
the School Board put this Plan into effect for the 1966-67 
school year (Plaintiffs’ App. 7).

It was necessary to amend this Plan for the 1967-68 
school year in order to incorporate into the Norfolk public 
school system Lake Taylor Senior High School, a new 
school which had been under construction for some time 
and which was ready for use at the beginning o f the 1967- 
68 school year. Furthermore, during the 1966-67 school 
year it became apparent that integration of the children 
at Maury High School and Blair Jr. High School had 
reached such proportions that something needed to be done 
to prevent the resegregation of these schools.

The plaintiffs, United States of America and the School 
Board again had long conferences in an effort to resolve 
these problems but were not able to reach an agreement 
(R. Vol. Ip . 150).

On March 29, 1967 the School Board filed its motion 
for leave to file and for approval of its Plan O f The 
School Board Of The City of Norfolk For Desegregation 
O f The Public Schools O f The City, As Amended, dated 
March 28, 1967, with a copy o f such amended plan attached 
(Plaintiffs’ App. 20-21, 31-41 ) 4.

On April 13, 1967 the plaintiffs filed their exceptions to 
the Plan, as amended, dated March 28, 1967 (Plaintiffs’ 
App. 42-44).

Trial o f the case began on April 17, 1967 on which day 
the evidence was introduced. Arguments of counsel were 
made on April 27 and 28 and hearings on the entry of

4 The Map—Elementary Schools was not printed.



7

the final order were held on May 26 and 29, 1967. (The 
typewritten transcript is Vols. II, III and IV  of the Re­
cord.)

When the case was called for trial on April 17, 1967 
Oliver L. Rosso et al., individually and as representatives 
of a class, filed their motion for leave to intervene and file 
exceptions to the Plan, as amended, dated March 28, 1967 
(Plaintiffs’ App. 45-46). Over the objections of the plain­
tiffs and the School Board (R. Vol. II pp. 13-36) the 
District Court granted the motion (Plaintiffs’ App. 47).

On May 12, 1967 the District Judge filed his Memoran­
dum Opinion (Plaintiffs App. 48-91). He upheld the con­
tentions of the intervenors Rosso et al and declared invalid 
the provisions of the Plan, as amended, dated March 28, 
1967, which related to the assignment of children to senior 
high schools. He suggested to the School Board three op­
tions from which it could choose its method of assigning 
such children. He found the other provisions of this 
amended plan to be valid and overruled all of the plaintiffs’ 
objections thereto.

The School Board adopted its Plan O f The School 
Board Of The City O f Norfolk For Desegregation Of 
The Public Schools O f The City, As Amended and Modi­
fied, dated May 23, 1967, which changed the provisions 
relating to the assignment of children to senior high schools 
so as to conform them to the third option suggested by the 
District Judge (Plaintiffs’ App. 93-102)5.

On May 26, 1967 the School Board filed its Plan, as 
amended and modified, dated May 23, 1967, together

s The maps referred to in and attached to this Plan were not 
printed. They are exactly alike the maps referred to in and attached 
to the Plan, as amended, dated March 28, 1967, two of which were 
printed, the M ap— Junior H igh  Schools, as amended 1967, at 
Plaintiffs’ App. 40, and the M ap— Senior H igh  Schools, as 
amended 1967, at Plaintiffs’ App. 41.



with a copy of its resolution adopting this plan, and ten­
dered a draft o f order approving this plan (School Board’s 
App. 103).

The intervenors, Oliver L. Rosso et al., did not file 
objections to the Plan, as amended and modified, dated 
May 23, 1967 (School Board’s App. 117-118).

The intervenor, United States of America, had not filed 
any objection to the Plan, as amended, dated March 28, 
1967 (School Board’s App. 112-113). On May 29, 1967 
the United States of America filed its response to the 
draft o f order tendered by the School Board in which it 
stated that the United States would not file any objection 
to the School Board implementing and proceeding under 
the Plan, as amended and modified, dated May 23, 1967, 
for the 1967-68 school year (School Board’s App. 1-2).

On May 29, 1967 the plaintififs filed their exceptions to 
the Plan, as amended and modified, dated May 23, 1967 
(Plaintiffs’ App. 102-103).

On May 29, 1967 the District Court entered its Order 
approving the Plan, as amended and modified, dated May 
23, 1967, directing the School Board to put it into effect 
for the 1967-68 school year and each school year there­
after until otherwise ordered by the Court, directing the 
School Board to report periodically to the Court on its 
operation, and retaining jurisdiction of the action (Plain­
tiffs’ App. 103-104)6.

Subsequently the School Board filed certain information 
requested by the District Court (Plaintiffs’ App. 109-110) 
and the District Judge filed a Supplemental Memorandum 
(Plaintiffs’ App. 104-108).

6 The date at the bottom of the printed Order is May 26, 1967. It 
should be May 29, 1967.



9

From the Order of the District Court entered on May 
29, 1967 the plaintiffs, exclusive of the intervenors United 
States of America and Oliver L. Rosso et al., took this 
appeal (Plaintiffs’ App. 110-111).

THE POINTS INVOLVED

1. Should the School Board be required to set percentage
goals and a numerical timetable for the desegregation of 
faculties ?

2. Was there racial discrimination in the selection of a 
faculty for the new Lake Taylor Senior High School?

3. The Northside-Rosemont Jr. High School situation.

4. Was attendance area Sr. H. IV, which is served by 
Booker T. Washington High School established properly?

5. The site of the proposed new Booker T. Washington 
High School.

STATEMENT OF THE FACTS

Plan O f The School Board Of The City Of Norfolk For Desegrega­
tion Of The Public Schools Of The City, As Amended And 
Modified, Dated May 23, 1967.

This is the plan which the District Court approved 
(Plaintiffs’ , App. 103-104). It will be referred to herein­
after as “ TH E  P L A N ” .

It recognizes the responsibility o f the School Board to 
employ, assign, promote and discharge teachers and other 
professional personnel without regard to race or color and 
the obligation of the School Board to take all reasonable 
steps to eliminate existing racial segregation of faculties. 
It sets forth a five-point program which the School Board 
adopted for the purpose of carrying out these responsi­
bilities. Stated briefly this program is as follows:



10

1. Teachers and other professional personnel will be em­
ployed solely on the basis o f qualifications and without 
regard to race or color.

2. In the recruitment and employment of teachers and 
other professional personnel all persons will be informed 
that the School Board operates a racially integrated school 
system and that teachers and other professional personnel 
are subject to assignment in the best interest of the school 
system and without regard to their race or color.

3. The Superintendent of Schools and his staff will 
solicit and encourage teachers presently employed to accept 
transfers to schools for the purpose of integrating the 
faculties, and will make such transfers when the teachers 
are qualified and suitable, apart from race or color, for 
the positions to which they are to be transferred.

4. In filling faculty vacancies which occur prior to the 
opening of each school year, presently employed teachers 
of the race which will further integration of the faculty 
in which the vacancy exists will be preferred, and such 
vacancy will be filled by a teacher whose race is the same 
as the race of the majority on the faculty only if no quali­
fied and suitable teacher of the opposite race is available 
for transfer.

5. Newly employed teachers will be assigned without 
regard to their race or color, provided, that if two are 
qualified and suitable for a particular position and the race 
of one is different from the race of the majority of the 
teachers on the faculty where the vacancy exists that one 
will be assigned in preference to the teacher whose race is 
the same as the race of the majority on such faculty. 
(Plaintiffs’ App. 93-95.)



11

T h e  P lan  divides the City into eleven attendance 
areas for elementary school children and designates certain 
elementary schools to serve each of these areas. The num­
ber of schools serving any one area varies from, three to 
nine. T h e  P la n  divides the City into three attendance 
areas for junior high school children and designates cer­
tain junior high schools to serve each of these areas. The 
number of schools serving any one area varies from two 
to six. The parent or guardian of every elementary school 
and junior high school child chooses one of the schools 
serving the attendance area in which the child resides and 
the School Board assigns the child to the school so chosen. 
Such choice is made for each school year. The school ad­
ministration furnishes to every elementary school and 
junior high school child a form designating the schools 
which the child may attend during the ensuing school year 
and on which his parent or guardian states his choice. In 
the event the capacity of a school is such that it cannot 
accommodate all of the children whose parents or guardians 
choose it, the School Board assigns to the school the chil­
dren who reside nearest it and the parent or guardian of 
any child who cannot be accommodated makes a second 
choice. In the event it develops that a school chosen will 
not have the child’s grade, his parent or guardian makes 
another choice. T h e  P la n  prescribes dates for the dis­
tribution and return of choice of school forms and con­
tains other implemental provisions which need not be de­
tailed here. (Plaintiffs’ App. 95-99, R. Vol. I p. 147, 
Plaintiffs’ App. 40.)

T h e  P la n  divides the City into five attendance areas 
for senior high school children, designates one certain 
senior high school to serve each of these areas and assigns 
the senior high school children residing in each area to the



12

school which serves the area in which they reside. There 
are the following exceptions, for the 1967-68 school year 
only, which are necessary for the protection of all 12th 
grade students: (1 ) the new Lake Taylor Senior High 
School, in accordance with established educational prin­
ciples (Plaintiffs’ App. 157-159, 162), does not have grade 
12 for the 1967-68 school year and all 12th graders re­
siding in the area which this school serves were assigned 
to the schools which they had been attending; and (2 ) any 
12th grader who at the end o f the 1966-67 school year was 
attending a school which under T h e  P lan  does not serve 
the attendance area in which he then resided may complete 
such school. (Plaintiffs’ App. 99-100, 41.)

T h e  P la n  contains provisions relating to an isolated 
group of elementary school children residing in a develop­
ment surrounded by United States Government-owned 
property, junior high school children residing in one of 
the attendance areas on United States Government-owned 
property, administrative transfers and the reasons there­
for, participation of all children in school activities, avail­
ability of copies of maps, distribution of copies of T h e  
P lan  and publication of T h e  P l a n , but it is not neces­
sary to detail these provisions here (Plaintiffs’ App. 100- 
102).

The Purpose Of The School Board

Mr. Vincent J. Thomas, Chairman of the School Board, 
stated clearly the Board’s recognition o f its responsibility 
to develop a unitary system and reviewed some of the 
things which the Board has done and is doing in its efforts 
to move to such a system (School Board’s App. 65-69).

His review included: the discussions which the School 
Board had with plaintiffs’ counsel, as representatives of the



13

Negro community, and counsel for the Federal Govern­
ment which resulted in the plan dated March 17, 1966; 
the meetings and conferences which the School Board ini- 
ated and held with representatives of the Negro community 
and patrons of Booker T. Washington High School with 
regard to this school; the resistance of the School Board 
to pressure to make changes at Maury High School which 
might have resulted in more segregation at the school; the 
equality of the schools throughout the City, be they old or 
new ones; the absence of any charge that a child or a 
parent had been influenced or coerced in any manner not 
to choose a school which he was entitled to choose; the 
purpose of the School Board to have successful integra­
tion. (School Board’s App. 66-69).

He reaffirmed the policy o f the School Board to assign 
teachers who are qualified and suitable without regard to 
race, and stated that it is not the intention o f the School 
Board to limit the integration of a faculty to two members 
o f the race opposite the race o f the majority o f the faculty 
members (School Board’s App. 70).

He reaffirmed the fact that the School Board is operating 
and will continue to operate in accordance with T hfx 
P lan  and corroborated the Director o f Personnel with 
regard to the affirmative steps being taken to integrate 
the teachers and the problems incident to the recruitment 
of new teachers (School Board’s App. 70-78).

The Faculties

The provisions relating to desegregation of the faculties, 
entitled “ Teachers And Other Professional Personnel” , 
are the same in the plan dated March 17, 1966, the amended 
plan dated March 28, 1967, and T h e  P la n  (Plaintiffs’ 
App. 9-10, 31-32, 93-95). The School Board and the Su­



14

perintendent of Schools and his staff have complied and 
are continuing to comply with these provisions (School 
Board’s App. 2-4, Plaintiffs’ App. 118-119). Their com­
pliance includes: talks to all teachers and other profes­
sional personnel; review of records of and interviews with 
teachers, principals and other professional personnel; par­
ticipation by the Director o f Pupil Personnel, principals 
and teachers in the Biracial Counseling Institute which 
was sponsored by the United States Office of Education 
under the Civil Rights Act and conducted at Purdue Uni­
versity in 1965 and 1966, and its follow-up program; atten­
dance by other teachers at similar institutes conducted at 
other Universities; participation in programs sponsored by 
the Office of Economic Opportunity and under Public Law 
89-10; appearances before the Norfolk Council on Human 
Relations, the City-wide Council of PTAs and various civic 
groups (School Board’s App. 127-129, 131-136, Plaintiffs’ 
App. 21-24).

The Director o f Personnel of the School Board under­
stands that “ we will continue to desegregate faculties as 
rapidly and as efficiently as we can.” (Plaintiffs’ App. 
114.) The policy of the School Board is to achieve de­
segregated faculties in each school (Plaintiffs’ App. 116).

The Director of Personnel planned to employ 79 teachers 
at the new Lake Taylor Senior High School for the 1967- 
68 school year; at the time of the trial of this case on 
April 17, 1967 he had “ earmarked” 30 teachers already 
employed in the system for this school, 7 of whom were 
Negroes and 23 o f whom were white (Plaintiffs’ App. 
120- 121).

He intends to integrate the faculties in the Norfolk Public 
School System as quickly as he can, consistent with put­
ting into the faculties qualified and suitable teachers 
(School Board’s App. 7).



15

He has met resistance from both Negro and white 
teachers already employed in the system to his efforts to 
integrate the faculties, and he has had problems recruiting 
new teachers because of the School Board’s program of 
integrating the faculties (School Board’s App. 8-10).

At the opening o f the 1966-67 school year the faculties 
in all of the senior and junior high schools and in 28 of the 
56 elementary schools were integrated and instructional 
and supervisory personnel working in and out of the cen­
tral administration offices and not assigned to specific 
schools were integrated (Plaintiffs’ App. 22-24).

The Northside-Rosemont Jr. High School Situation

The plaintiffs assumed, on the basis o f statistics for 
previous years, that Northside Jr. High School would be 
greatly overcrowded for the 1967-68 school year, but there 
was no evidence that this school would be overcrowded at 
all (Plaintiffs’ App. 142-143).

If this school should be overcrowded to the point where 
it could not accommodate all of the children who chose it, 
the School Board would handle the situation in the manner 
that is best educationally for the people and children con­
cerned by the Superintendent of Schools could not state 
what this manner would be until all of the choices of 
schools had been received and he knew what the over-all 
school attendance would be (Plaintiffs’ App. 145-146). 
He suggested as possibilities a temporary addition to 
Northside Jr. High School, and transferring some of the 
ninth grade children to the respective senior high schools 
which they would attend the following year (Plaintiffs’ 
App. 147-149). He had also considered the possibility of 
transferring some of the children from Northside to Rose- 
mont Jr. High School, had discussed this possibility with



16

counsel for the plaintiffs and had told counsel that he would 
study it (Plaintiffs’ App. 150-151).

When Rosemont Jr. High School was constructed a few 
years ago there was considerable housing adjacent to it 
and it was filled almost to capacity. In the past three or 
four years the area in which the school is located became a 
redevelopment project and two major highways, one inter­
state, were constructed through the area with the result 
that many o f the homes were removed and the membership 
of the school decreased, leaving some of the rooms vacant. 
This decrease in membership should be temporary because 
construction of new homes has started and the urban re­
development plan provides for not only filling this school 
but also for the construction of another school. (School 
Board’s App. 52-53.)

The Senior High Schools And The Geographical Attendance Areas 
Which They Serve

Prior to the 1967-68 school year there was a great area 
of the City of Norfolk which did not have a senior high 
school. To provide this area with such a school and also 
to provide additional room needed in the City’s existing 
four senior high schools, Lake Taylor Sr. High School was 
constructed. (School Board’s App. 26-27.)

In order to incorporate this new school into the system 
it was necessary to establish new attendance areas for the 
senior high schools and to amend the School Board’s plan 
dated March 17, 1966. The approximately 10,000 senior 
high school children had been distributed among four 
schools and it was necessary to redistribute them among 
five schools. (School Board’s App. 31-32, 35.)

The boundary lines of the new attendance areas were 
drawn, as much as possible, along existing natural bound­
aries and with available transportation and the normal



17

capacity of each school in mind and so that there would be 
an approximately even division o f the children among the 
five schools ( School Board’s App. 35-36).

Dr. John C. McLaulin, Director of Research of the 
School Board, drew the boundary lines and prepared the 
M a p— Se n io r  H ig h  S chools, as amended 1967 (Plain­
tiffs’ App. 41) which defines the senior high school atten­
dance areas and the boundaries thereof and shows the 
location of the senior high school which serves each area 
(School Board’s App. 56-58).

Dr. McLaulin explained in detail how he prepared this 
map and how the boundary lines of the attendance areas 
were drawn along major highways, waterways, railroads 
and planning district lines. All of his testimony in this 
regard (School Board’s App. 58-64) is recommended to 
the Court because the summary o f it which follows does 
not give to it its full effect. The City Planning Commission 
had recently divided the City into planning districts 
(shown on the map entitled “ Planning Areas and Planning 
Districts, City of Norfolk, Virginia”— School Board’s 
App. 137) and had prepared a booklet entitled “ Planning 
District Delineation” which translated every address in the 
City into a planning district number. On September 29, 
1966 the School Board had conducted its semiannual Fed­
eral survey required by Public Law 874 and obtained the 
address of every child in the public school system of the 
City. Using the addresses obtained in the survey Dr. Mc­
Laulin placed the children in their respective planning dis­
tricts by grade. He then radiated out from each school, 
counting children until he reached approximately 2,000, 
drew a line around them and adjusted the line to the natural 
boundaries in practically every instance and at the few 
points where natural boundaries were not available ad­
justed the line to the planning district lines.



18

Dr. McLaulin did not draw the boundary line between 
attendance areas Sr. H. I l l  and Sr. H. IV  so as to separate 
the white and Negro communities. This line drawn down 
the Virginian Railway track does divide, in substance, the 
white population from the Negro population in the general 
area, but it was not drawn for the purpose of dividing 
them. (Plaintiffs’ App. 173-174.)

The Site Of The Proposed New Booker T. Washington High School

The plans for the new Booker T. Washington High 
School provide for it to be located on the site of and adja­
cent to the existing school or within three or four square 
blocks thereof. After three or four years of planning by 
the School Board, committees representing the Negro race, 
especially The Better Booker T. Washington Committee, 
the PT A  and the civic leagues in the area it was the deci­
sion of all concerned that this location is the best one. It 
is planned as part o f an educational complex, with a college, 
in an urban renewal plan. (Plaintiffs’ App. 168-169, School 
Board’s App. 19.)

The attendance area served by Booker T. Washington 
High School is the smallest and most densely populated of 
all the senior high school attendance areas and the school 
is the most centrally located within its area of all the senior 
high schools (Plaintiffs’ App. 41, School Board’s App. 
46). The site o f the new school will best serve the children 
who live in the area which the school will serve and no 
other site would better facilitate the desegregation of the 
school (School Board’s App. 15-18). The School Board 
plans to promote the desegregation of the school by deseg­
regating the faculty, the construction o f the new building 
and keeping the school abreast of everything that is being 
done in American education in high schools (Plaintiffs’ 
App. 167).



19

ARGUMENT

1. The School Board, With Good Faith Implementation Of Gov­
erning Constitutional Principles, Is Establishing A Unitary System.

In Brown v. Board of Education, 349 U. S. 294, 99 L 
ed 1083, the Supreme Court said:

“ Full implementation of these constitutional prin­
ciples [that racial discrimination in public education 
is unconstitutional, and that all provisions of federal, 
state, or local law requiring or permitting such dis­
crimination must yield to this princple] may require 
solution of varied local school problems. School au­
thorities have the primary responsibility for elucidat­
ing, assessing, and solving these problems; courts will 
have to consider whether the action of school author­
ities constitutes good faith implementation of the gov­
erning constitutional principles. . . .” 349 U.S. 299, 99 
L ed 1105.

The School Board accepted its responsibility and begin­
ning with the standards, criteria and procedures relating 
to the assignment o f children to schools which it adopted 
in 1958 has moved forward steadily and successfully. The 
important steps in this progress are summarized in the 
Statement of the Case at the beginning of this brief.

Both the District Court and this Court have found that 
the actions of the School Board constituted good faith im­
plementation of the governing constitutional principles.

In Hill v. School Board of City of Norfolk, Virginia, 
4 Cir., I960, 282 F.2d 473, this Court said:

“ In its opinion of May 8, 1959, the District Court 
had found that the Norfolk School Board had been 
cooperative and was proceeding in a sincere effort to 
comply with the laiw. In approving the School Board’s 
rejection of the applications of these appellants, the 
District Court found that the School Board had un-



20

dertaken to apply its criteria and procedures honestly 
and fairly, and he concluded that the result, as an 
interim step ‘in an orderly transition period,’ was in 
compliance with the mandate of the Supreme Court in 
the original school cases... 282 F.2d 474.

“ . . . W e give weight also to the past conduct of 
the School Board and the history it has established, and 
to the District Court’s finding that it is the Board’s 
purpose to proceed in good faith and with reasonable 
speed in compliance with the direction of the Supreme 
Court... .” 282 F. 2d 475.

In its Memorandum Opinion filed in the previous Brewer 
case which this Court remanded, Beckett v. School Board 
of the City of Norfolk, Virginia, D.C.E.D.Va., 1964, 9 
Race Rel. L. Rep. 1315 (apparently otherwise unreported), 
at p. 1316, the District Court, after referring to problems 
which existed in Norfolk, said:

“ In this setting the Norfolk City School Board has 
struggled with the many problems confronting them. 
They have moved cautiously but steadily forward to the 
point where they now present, in response to plaintiffs’ 
motion for further relief, a plan of operation and pro­
cedure which goes far— and this Court believes the 
entire way— in removing all elements of racial dis­
crimination in the school system but, at the same time, 
affords a freedom of choice to all children (speaking 
through their parents or guardians) to attend the 
school of their choice in accordance with the geograph­
ical location of their homes.”

In the instant case the District Court, in its Memoran­
dum Opinion, said:

“ The good faith o f the School Board cannot be 
questioned. Indeed, it is considered by many that it 
has ‘gone overboard’ in an effort to meet the prob­
lem. . . . ” (Plaintiffs’ App. 77.)



21

“ The School Board of the City of Norfolk has a 
thankless task. Serving without compensation and de­
voting countless time and effort in endeavoring to 
comply with the law, and at the same time, maintaining 
a quality education program, the Board is justly en­
titled to commendation from the citizens of Norfolk, 
irrespective of race. . . . The Board has made great 
strides since the dark school-closing days of 1958-59. 
The members are determined that there shall be no 
repetition of this tragic error which, o f course, was not 
brought about by the action of the Board. Irrespective 
of what others may say or do, the present judge of 
this court will continue to have confidence in their judg­
ment and integrity.” (Plaintiffs’ App. 90.)

The determined efforts of the School Board have cul­
minated in T h e  P la n  with which the School Board, in 
continued good faith, is establishing a unitary system.

The question of the necessity of a plan providing for 
desegregation of faculties was not finally resolved until 
November 15, 1965 when the Supreme Court handed down 
its decisions in Bradley v. School Board of the City of 
Richmond, Virignia and Gilliam v. School Board of the 
City of Hopezvell, Virginia, 382 U. S. 103, 15 L ed 2d 
187. By September 6, 1966, when the Norfolk schools 
opened for the 1966-67 school year, the faculties in all of 
the four senior high schools, all of the eleven junior high 
schools and twenty-eight of the fifty-six elementary 
schools were integrated (Plaintiffs’ App. 22). While the 
number o f teachers of the race opposite the race o f the 
majority of the teachers in 75% of the integrated faculties 
was relatively small (Plaintiffs’ App. 23-24), 77% of all 
professionals assigned to schools worked at schools with 
integrated faculties (School Board’s App. 123).

As of September 30, 1966: 31 of the City’s 71 schools 
were integrated, 5,603 of the 22,535 Negro school children



22

attended integrated schools, and 24,260 of the 33,316 white 
school children attended integrated schools. Approximately 
53% of the City’s 55,851 public school children attended 
integrated schools. (Plaintiffs’ App. 26-29.)

The steady progress of integration of the children is 
illustrated by the following tabulation (Plaintiffs’ App. 
29) :

As of As of As of
Sept. 14, Sept. 30, Sept. 30,

1964 1965 1966
Number of schools 66 71 71
Number of integrated schools 
Number of Negro pupils

20 26 31

in integrated schools 
Number of White pupils

3,173 4,575 5,603

in integrated schools 
Total number of pupils

19,330 21,213 24,260

in integrated schools 22,503 25,788 29,863
The numbers of pupils as of Sept. 14, 1964 are enrollment figures.
The numbers of pupils as of Sept. 30, 1965 and Sept. 30, 1966 are 

membership figures.
As of Sept. 14, 1964 Campostella Jr. High and Campostella Ele­

mentary were housed in the same building and were counted as one 
school. The same was true with respect to Madison Jr. High and 
Madison Elementary and with respect to Rosemont Jr. High and 
Rosemont Elementary.

As of Sept. 30, 1965 and Sept. 30, 1966, Campostella Jr. High, 
Campostella Elementary, Madison Jr. High, Madison Elementary, 
Rosemont Jr. High and Rosemont Elementary were counted as 
separate schools.

2. The United States Did Not File Objections To THE PLAN.

The United States of America, although concerned 
about the site of the proposed new Booker T. Washington 
High School, did not file any objection to the School 
Board implementing and proceeding under T h e  P lan  
for the 1967-68 school year. The United States had not 
filed any objection to the Plan, as amended, dated March 
28, 1967 and in this connection the District Court stated 
in its Memorandum Opinion (Plaintiffs’ App. 51) :



23

“ Even the Civil Rights Division concedes that prog­
ress is being made in Norfolk. This is what prompted 
the United States to refrain from filing objections to 
the 1967-68 proposed plan.”

3. The Plaintiffs Do Not Object To Many Parts Of THE PLAN.

The plaintiffs assert that specific goals and a timetable 
for the desegregation of faculties should be set and they 
complain o f the number of teachers integrated, but they 
do not object to the basic provisions relating to teachers 
and other professional personnel.

They do not object to the provisions relating to elemen­
tary school children, the choices of schools which their 
parents or guardians have and the assignment of such 
children to the schools chosen.

They complain that the School Board refuses to transfer 
junior high school children from Northside to Rosemont 
Jr. High School, but they do not object to the provisions 
o f T h e  P la n  as they relate generally to junior high 
school children.

Even as to the senior high schools where they assert, 
without any basis for doing so, that the boundaries of 
attendance area Sr. H. IV  were drawn so as to separate 
the Negro community from white communities, the plain­
tiffs do not attack the geographical zoning as a whole.

No objection is made to the method of distributing and 
otherwise making available copies of T h e  P l a n , copies 
of the maps and choice of school forms, and the other 
implemental provisions of T h e  P l a n .

4. The School Board Should Not Be Required To Set Percentage
Goals And A Numerical Timetable For The Desegregation Of
Faculties.

The School Board has a goal. It is not expressed in per­
centages and certain fixed dates which the Board might not



24

be able to meet, but it is stated in terms which the Board 
has already demonstrated can be met. This goal is to 
integrate the faculties in all of the schools as rapidly as 
possible consistent with putting into the faculties qualified 
and suitable teachers.

The School Board believes that this goal goes beyond the 
“minimal, objective time table” which this Court thought 
necessary in Bowman v. County School Board of Charles
City County, Virginia, 4 Cir., 1967, No. 10,793, ...... F.
2 d ......

The Court o f Appeals for the Fifth Circuit in United 
States v. Jefferson County Board of Education, 5 Cir., 
1966, 372 F.2d 836, upon rehearing en banc, 380 F.2d 385
(1967), cert, den........U. S........~ , ......L ed 2 d ____(1967),
recognized the difficulties which a school board faces in in­
tegrating its faculties. At 372 F.2d 892 the Court said:

. . The most difficult problem in the desegregation 
process is the integration of faculties. ..

The Fifth Circuit also said in Jefferson, 372 F.2d 892:

“ . . . Everyone agrees, on principle, that the selection 
and assignment of teachers on merit should not be 
sacrificed just for the sake of integrating faculties; 
teaching is an art. . .

The decree which the Fifth Circuit directed its District 
Courts to enter contained the following provisions:

. . Teachers, principals, and staff members shall 
be assigned to schools so that the faculty and staff is 
not composed exclusively of members of one race. 
Wherever possible, teachers shall be assigned so that 
more than one teacher of the minority race (white or 
Negro) shall be on a desegregated faculty. Defendants



25

shall take positive and affirmative steps to accomplish 
the desegregation of their school faculties and to 
achieve substantial desegregation of faculties in as 
many of the schools as possible for the 1967-68 school 
year notwithstanding that teacher contracts for the 
1966-67 or 1967-68 (1967-68 or 1968-69) school years 
may have already been signed and approved. . . 
372 F.2d 900, 380 F.2d 394.

The goal of the School Board and the action which it 
has already taken toward accomplishing its goal measure 
up to, if they do not exceed, these requirements o f the 
Fifth Circuit.

The plaintiffs assert, at pages 13 and 14 of their Brief, 
that “ The requirement of a definite timetable for the school 
desegregation process was first stated by this Court in 
this case, sub nom, Hill v. School Board of the City of 
Norfolk, Virginia, 282 F.2d 473 (4th Cir. I960).” The 
School Board does not so understand this Court’s opinion 
in that case.

In the first place, the desegregation of faculties had not 
even been mentioned at the time of the Hill case.

Hill dealt with the application of the School Board’s 
standards, criteria and procedures. This Court was con­
cerned about the first grade children and when the plan of 
the School Board for eliminating discrimination as to chil­
dren would reach the first grade. In this connection the 
Court said:

“ . . . The District Judge should from time to time be 
informed more specifically about the time table con­
templated by the Board, and such a time table would 
aid the Judge in determining whether to give approval 
to the Board’s subsequent plans and conduct. . . .” 282 
F.2d475.



26

The action of the District Court in Kier v. County 
School Board of Augusta County, Virginia, D.C'.W.D.Va., 
1966, 249 F. Supp. 239, upon which the plaintiffs rely, 
cannot set a pattern for a school system the size of Nor­
folk’s. August County had only slightly over 500 Negro 
children in a school population of over 10,000, and approx­
imately 25 Negro teachers. The reported case does not 
state the total number of teachers in the system but it 
probably was about 400.

It is interesting to note, however, that the District Court 
prefaced its guideline for the desegregation of the Augusta 
County faculties with “ insofar as possible” . 249 F. Supp. 
247.

5. There Was No Racial Discrimination In The Selection O f A 
Faculty For The New Lake Taylor Senior High School.

There is simply no evidence to support the plaintiffs’ 
assertion to the effect that the Director of Personnel was 
going to arbitrarily limit the number of Negro teachers 
at Lake Taylor Senior High School and discriminate in 
the selection of the faculty for this school.

When this case was tried on April 17, 1967 the Director 
planned to employ 79 teachers at this school for the 1967- 
68 school year but his selection of them was far from 
complete. He had “ earmarked” 30 teachers, 7 of whom 
were Negroes and 23 of whom were white. (Plaintiffs’ 
App. 120-121.)

23 white to 7 Negro teachers approximates the three-to- 
one ratio for which the plaintiffs contend!

6. The Northside-Rosemont Jr. High School Situation.

This problem was created by the change in the housing 
adjacent to the Rosemont Jr. High School. When this



27

school was constructed a few years ago it was filled almost 
to capacity. Then the area became a redevelopment project 
and an interstate and another major highway were con­
structed through the area. Many of the homes were re­
moved and many of the children left the area and the 
school. The School Board was left with vacant rooms, but 
for how long? The redevelopment plan called for the con­
struction of new homes, which has started, in such quan­
tity that the children living in them would be sufficient to 
fill the existing school and make necessary the construction 
of a new school.

There was no evidence that Northside Jr. High School 
would be crowded for the 1967-68 school year but if it 
was the proposed transfer o f students from it to Rosemont 
Jr. presented a serious educational problem. Too frequent 
transfers are detrimental to children and the District Court 
has held, with no appeal, that they do not have to be made. 
Beckett v. School Board of the City of Norfolk, Virginia, 
D.C.E.D.Va., 1958, 3 Race Rel. L. Rep. 942-964 (appar­
ently otherwise unreported), at pp. 953-954; Beckett v. 
School Board of City of Norfolk, Virginia, D.C.E.D.Va., 
1959, 181 F. Supp. 870, at p. 871. If ninth graders should 
be transferred they would have been at Northside Jr. only 
one year and they would stay at Rosemont Jr. only one 
year, at which time they would go to a senior high school. 
If eighth graders should be transferred they would prob­
ably stay at Rosemont Jr. only one year because the chil­
dren moving into the new homes being built, according to 
the redevelopment plan, would more than fill the vacant 
rooms.

The best that the School Board could do was to study 
this problem and it committed itself to do so.

The School Board was not influenced by racial consider­
ations. It had already integrated the faculty of Rosemont



28

Jr. High by more than the three-to-one ratio which the 
plaintiffs seek. O f its 13 teachers, 8 were Negro and 5, 
including the principal, were white (Plaintiffs’ App, 23, 
154-155).

7. Attendance Area Sr. H. IV, Which Is Served By Booker T.
Washington High School, Was Established Properly.

The plaintiffs throughout their Brief make the asser­
tion that the School Board drew the boundary lines of 
attendance area Sr. H. IV  so as to separate and with the 
express purpose of separating the residences of Negroes 
from the residences of whites.

All of the evidence shows that these lines were not so 
drawn. The plaintiffs have nothing upon which to base 
their assertions, and the principle of law and authorities 
therefor stated at page 19 of their Brief do not apply to 
the situation here.

It is obvious from the testimony of the Director o f Re­
search o f the School Board that he drew these lines without 
any regard for race. His purpose was to establish an atten­
dance area for each of the five senior high schools, with 
the boundaries of each area drawn insofar as possible along 
natural boundaries and with available transportation in 
mind, so that the approximately 10,000 senior high school 
children would be distributed as evenly as possible among 
the five senior high schools.

From the latest semiannual Federal survey required by 
Public Law 874, which was made without any thought of 
race, he obtained the address o f every child in the public 
school system. The City Planning Commission had recent­
ly divided the City of Norfolk into planning districts, pre­
pared a map of these districts and their numbers, and pre­
pared a booklet which translated every address in the City



29

into a planning district number, all without any thought 
o f race. Using the addresses obtained in the survey the 
Director placed the children in their respective planning 
districts by grade. Then he radiated out from each school 
counting senior high school children until he reached ap­
proximately 2,000, drew a line around them and adjusted 
the line to the natural boundaries, or at the few points 
where natural boundaries did not exist to the planning dis­
trict lines.

The plaintiffs complain that there are white children in 
attendance area Sr. H. V  who attend Maury High School 
but live closer to Booker T. Washington High School, and 
that there are Negro children in attendance area IV  who 
attend Booker T. Washington but live closer to Maury. 
This may be correct but if it is, it is a situation which 
must occur in a zoning system, in the absence of an ideal 
location of schools and children. There are probably few, 
if any, school systems in which all o f the schools are located 
in the exact centers o f the areas which they serve. There 
are no doubt children, white and Negro, living in Sr. H. 
I l l  and closer to Norview Sr. High School who attend 
Lake Taylor Sr. High, and such children living in Sr. H. 
II and closer to Granby High who attend Norview Sr., and 
so on. In fact, Booker T. Washington High School is the 
most centrally located in its attendance area of all the 
senior high schools.

It is correct that practically all of the children who 
attend Booker T. Washington High School are Negro but 
this is because practically all of the people who live in the 
area surrounding the school are Negroes.

The plaintiffs suggested moving one or more of the 
boundary lines of Sr. H. IV  so as to include in the area 
more white children but this cannot be done without dis­



30

rupting the approximately even distribution of the senior 
high school children among the five senior high schools.

In Gilliam v. School Board of the City of Hopewell, 
Virginia, 4 Cir., 1965, 345 F.2d 325, remanded on other 
grounds 382 U. S. 103, 15 L ed 2d 187, this Court ap­
proved Hopewell’s geographic assignment plan. The Sr. 
H. IV  situation is similar to that which existed in several 
o f Hopewell’s zones.

Attendance Area Sr. H. IV  was honestly and conscien­
tiously established with no intention or purpose to segre­
gate the races, as were the other senior high school atten­
dance areas, and the constitutional rights of the plaintiffs 
were not violated even though racial imbalance resulted at 
Booker T. Washington. Bell v. School City of Gary, In­
diana, 7 Cir., 1963, 324 F. 2d 209, cert. den. 377 U. S. 924, 
12 L ed 2d 216. At 324 F. 2d 213, the Seventh Circuit 
said:

“ W e approve also of the statement in the District 
Court’s opinion, ‘Nevertheless, I have seen nothing in 
the many cases dealing with the segregation problem 
which leads me to believe that the law requires that a 
school system developed on the neighborhood school 
plan, honestly and conscientiously constructed with no 
intention or purpose to segregate the races, must be 
destroyed or abandoned because the resulting effect is to 
have a racial imbalance in certain schools where the 
district is populated almost entirely by Negroes or 
whites. * * *’ ”

Deal v. Cincinnati Board of Education, 6 Cir., 1966,
369 F.2d 55, cert. den. ----- U. S...... .., ......  L ed 2d ___
is further authority for the validity o f attendance area Sr. 
H. IV  and. the other senior high school attendance areas. 
The City of Cincinnati operated a geographic zoning sys­
tem with neighborhood schools. Because of residential pat­



31

terns the Negro children were not spread uniformly 
throughout the school system but some schools were pre­
dominantly or wholly of one race or another. The plaintiffs 
contended that it was the duty o f the School Board to 
eliminate the imbalance. The Sixth Circuit rejected this 
contention and held that School Boards do not have any 
constitutional obligation to relieve against racial imbalance 
which they did not cause or create.

8. The Site O f The Proposed New Booker T. Washington 
High School.

The evidence established beyond any question that this 
site will best serve the children who live in attendance area 
Sr. H. IV. The Superintendent of Schools testified, with­
out contradiction, that the most impotrant factor in the 
location of school sites is “ where the children live” . He 
went on to state: “ This is the highest number of walking 
children in high school in the city. To move a school away 
from them would be tragic, I think.” ( School Board’s 
App. 46.)

The evidence established further that no other site would 
better facilitate the desegregation of the school, which the 
School Board plans to promote by desegregating the facul­
ty and by other means.

Furthermore, after several years of planning by the 
School Board and committees representing the Negro race, 
it was the decision of all that this site is the best one.

Deal v. Cincinnati Board of Education, 369 F.2d 55, 
at p. 61, held that there is no constitutional duty on the 
part of the Board to select new school sites for the sole 
purpose of alleviating racial imbalance that it did not cause,

9. The Site O f Lake Taylor Sr. High School.

At pages 19 and 20 of their Brief the plaintiffs appear 
to take exception to this site. This school was under con­



struction at the times of the conferences which the School 
Board, plaintiffs and United States had and at the time of 
the trial of this case, but the School Board does not recall 
that the plaintiffs raised any objection then. The School 
Board believes that this site should not be injected into 
the case now.

32

CONCLUSION

The School Board offered and the District Court ac­
cepted Dr. Allen H. Wetter as an expert in the fields of 
public school education, including administration and per­
sonnel, and desegregation or integration (School Board’s 
App. 85-98).

Dr. Wetter was born in and has lived all o f his life in 
the City of Philadelphia. He is now retired as Superinten­
dent of the public schools o f Philadelphia, which he at­
tended as a child and in which he served as a teacher, 
principal, district superintendent, assistant to the superin­
tendent, associate superintendent, and from 1955 to 1964 
as superintendent. (School Board’s App. 85-86.)

In addition to his other qualifications, he has been a 
consultant to the Office o f Education in Washington 
(School Board’s App. 87).

Without attempting to compare the public school situat­
io n  in Norfolk with that in Philadelphia, where the schools 
have always been integrated (School Board’s App. 87), 
Dr. Wetter’s testimony is significant. He considered that 
the School Board, with respect to the children, has made 
“ very wonderful progress in a short time” , that Philadel­
phia has “ not done any better than Norfolk has done at 
this time in general terms” (School Board’s App. 98). 
With respect to the faculties he stated “ Again, there has 
been a considerable moving ahead here.” (School Board’s



33

App. 100.) He noted that in Philadelphia in 1967 seven­
teen elementary schools did not have a Negro teacher or 
staff member, that one high school with 3,500 children had 
only 4 Negro teachers and another high school with 4,000 
children had only 1 Negro teacher (School Board’s App. 
100).

He confirmed the fact that teachers cannot be forced to 
teach in a school where they do not want to teach (School 
Board’s App. 100-102).

The School Board believes that Dr. Wetter’s testimony 
fully supports its faith in the effectiveness o f T he P lan .

Respectfully submitted,

L e o n a r d  H. D a v i s ,
City Attorney

Counsel for Appellees